3925928 Manitoba Ltd. v. 101029530 Saskatchewan Ltd., 2005 FC 1465 (CanLII) Click here. This judgement confirms the risk of facing damages for the unauthorized use of another individual's tradename. You can also face arrest and jail time.

    

This judgement confirms the risk of facing damages for the unauthorized use  of another individual's tradename.  You can also face arrest and jail time.  

3925928 Manitoba Ltd. v. 101029530 Saskatchewan Ltd., 2005 FC 1465 (CanLII)

REASONS FOR JUDGMENT AND JUDGMENT

[1]         In the motion filed with this Court on August 9, 2005, the Plaintiffs in this trademark dispute seek default judgment against the Defendants, Curtis Malinowski and 101029530 Saskatchewan Ltd. (collectively referred to as "Malinowski"), for the infringement of their various trade names and trademarks related to "Shapes for Life" franchise fitness centres.

[2]         The Plaintiffs commenced this action by way of Statement of Claim filed with this Court on September 24, 2004. On April 28, 2005, I heard and allowed the Plaintiffs' motion for an interlocutory injunction, on the basis that the Plaintiffs had satisfied the test for the granting of the injunctive relief as set out in RJR MacDonald Inc. v. Canada (Attorney General) 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. In addition to the interlocutory injunction, I also granted, pursuant to Rule 377(1) of the Federal Court Rules, S0R/98-106 an order for the custody or preservation of property that is or will be the subject matter of the proceeding.

[3]         Although served with the motion materials, Malinowski did not appear for the hearing of this motion. At this point, based on the record filed and the submissions of the Plaintiffs, I am satisfied that the Plaintiffs have proved the elements of their claim. Specifically, I find that the Plaintiffs hold the rights to the "Shapes for Life" mark and that Malinowski knowingly and willingly infringed the Plaintiffs' trademarks. Further, I am satisfied that, while Malinowski has not acted in contravention of the injunction, he has failed to comply with the order for custody or preservation of property as required by the Order dated April 28, 2005. Accordingly, the Plaintiffs are entitled to default judgment. Judgment to that effect will issue.

[4]         In addition to a permanent injunction and other remedies set out in the Order issued with these reasons, the Plaintiffs seek two types of monetary remedy: an accounting of profits and damages. At issue is what type and amount of remedy should be granted.

Relevant Legislation

[5]         The power to order remedies in respect of trademark infringement derives from s. 53.2 of the Trade-Marks Act, R.S., c. T-10 (the "Act").

53.2 Where a court is satisfied, on application of any interested person, that any act has been done contrary to this Act, the court may make any order that it considers appropriate in the circumstances, including an order providing for relief by way of injunction and the recovery of damages or profits and for the destruction, exportation or other disposition of any offending wares, packages, labels and advertising material and of any dies used in connection therewith.